Short lease on flat issue

[davejf]

Not much of a poster but an avid follower of the forum.
To start out I will say we are actually seeking legal advice but I want to see if anyone has been through this before and what outcomes there have been. I have no idea how this will pan out.

My girlfriend bought her flat 5 years ago and has just come to renew mortgage and change provider to a better deal. Their legal team have pointed out a short lease on the property which my girlfriend wasn’t aware of. She provided them details of the long lease extension done in 2007 but they came back and said it wasn’t that one, it was the second title. She didn’t realise there were two titles on the property and one hasn’t been extended when the other one was by previous owners. Therefore mortgage company have said no and she’s stuck with the current mortgage lender for now.

However, if this is an issue we fail to see how she got a mortgage in the first place?

The short lease is actually only on the garden, not the property and is currently 40 years!

This wasn’t pointed out at any stage by the solicitors at the time to my girlfriend as if they had, she wouldn’t have purchased at full asking price until it was extended.

If in my job I had pointed out something where I recommend against purchasing with a short lease (which surely they should have?) and the client had proceeded anyway I’d have covered my back by getting a disclaimer signed in case of the client ever coming back. Would it be reasonable to expect the solicitor to have done something like this as she doesn’t have any paperwork or remember ever being advised of the short lease or against proceeding with the purchase?

There is obviously a big cost to the fees and the cost of extending the lease and I’d like to know thoughts about who is liable for this as I just can’t imagine anyone should know the legal ins and outs about titles and how many leases, surely that’s the solicitors job?

Sorry for the long rambling post. I’ll try my best to answer any questions promptly.

Dave.

[davejf]

Hopefully it is all ok, clear and factual.
I just know how some posters reply on here having followed it for so long. All I’m trying to find out is who is liable to cover costs of extending the lease, for each part of the costs based on others experience of going through this as we can’t be the first to have this happen.

[davejf]

CoreyDog said:

My other half is a conveyancing solicitor. Just asked her about it.

She says only option your GF has is to extend the garden lease. It shouldn't be too expensive. Go onto Google and use a Lease Extension Calculator.

She suggests contacting the previous solicitor who acted in the purchase and give them a chance to look into it and to see why this wasn't picked up when she purchased the property. Ask if they can assist in solving the issue as the lease will need to be extended (May get a discounted rate etc).

Different mortgage firms use different processes, most require the acting solicitors though to provide the information. It either wasn't provided by the solicitor or the particular lender has different requirements to your new lender. The general rule now is anything below 80 years needs an extension.

Thank you.
We have contacted the previous solicitor and she says she ‘would have mentioned it’ although as it was 5 years ago can’t be sure. She has offered to waive her fee for the extension but other than that being vague and doesn’t have any notes or replies from the mortgage lender at the time accepting the short lease.

My honest opinion is that they should be liable for the cost of extending it if they didn’t advise it in the first place as my GF would have got it extended by the previous owner before completion had she known about it. As it stands this could cost us quite a bit.

I’ll have a look at the lease extension calculator as I have no idea what to expect currently.

[davejf]

joropug said:

I don't have specifics on your issue but we have to renew the lease on our flat because the ground rent is high, the years are actually fine.

Mortgage lenders (and their valuers) have absolutely cracked down on any onerous terms in a lease due to these leasehold scandals in the press.

Does she have a share of freehold on the property (if so it will just be an admin excercise hopefully). If another company owns it, you'll probably have to do a statutory lease extension on it.

Seems weird having a separate lease on the garden. My flat has a garage in a block, a garden not connected either and it's all under 1.

No share of the freehold unfortunately.
It does seem weird and we’ve never heard of it before. It appears as it was 2007 when the person she bought it from bought it and it wasn’t extended with the property then, a few solicitors seem to have missed it!

[davejf]

CoreyDog said:

Other half says the fact she has agreed to waive the fees is good but you should be aware that you're not only responsible for your legal and valuation fees but also those of the freeholder. There is also a premium to pay and land registry fees but you should ask that the solicitor be responsible for the registry fees.

Also note the time frame and whether your new mortgage offer has an expiry date as there are two ways to extend and if you extend formally this can be a lengthy process. It maybe worth making an informal approach to the freeholder directly as this can be completed faster as it's not governed by the statutory time frame so can be concluded more swiftly which will reduce costs.

Edited by CoreyDog on Thursday 18th July 20:36

Yes we have been told we will have to cover freeholders costs too plus the others.
Unfortunately we don’t know who the freeholder is or how to contact them so we will have to go the long way round and the mortgage offer will expire in that time.

[davejf]

CoreyDog said:

My other half is a conveyancing solicitor. Just asked her about it.

She says only option your GF has is to extend the garden lease. It shouldn't be too expensive. Go onto Google and use a Lease Extension Calculator.

She suggests contacting the previous solicitor who acted in the purchase and give them a chance to look into it and to see why this wasn't picked up when she purchased the property. Ask if they can assist in solving the issue as the lease will need to be extended (May get a discounted rate etc).

Different mortgage firms use different processes, most require the acting solicitors though to provide the information. It either wasn't provided by the solicitor or the particular lender has different requirements to your new lender. The general rule now is anything below 80 years needs an extension.

I’ve googled the lease extension calculator but I don’t think I have all the information as if I put in the value of the property then I get a 25-33% of the property value as the premium which is a very big value! But as this lease is only on the garden, surely I should only be putting in the value of the garden, not the whole lot, but I have no idea what value the garden would be compared to the flat in the overall scheme of things

[davejf]

CoreyDog said:

Lizzie says go onto the Land Registry website and you can download a copy of the freehold title for £3 or the purchase solicitor should have the details already.

Thank you. I think we have that as it gives a company name and contact name but I’ve run a check through companies house and the company named was dissolved a few years ago. Does that get updated with new details if the freeholder changes?

[davejf]

CoreyDog said:

It's sounds like that maybe an old document and it should be updated with new details.

Get a new copy of the title, it should have details of the freeholder.

Great. Thank you for your help and suggestions.

[davejf]

CoreyDog said:

I'll pass your thanks onto my better half. To be fair, I didn't understand half of what she said to me!

If you need any other help, she says just ask and she will do what she can.

[davejf]

hutchst said:

You should bear in mind when doing your mental calculations about how much the conveyancer should pay your partner, that it isn't actually costing her anything. All the costs she is being asked to pay now, she would have had to pay (but didn't) when she bought the flat, so she isn't actually out of pocket.

That is likely to make anything more than a voluntary goodwill contribution quite a challenge.

Surely that’s not right though as if she had been notified about the short lease she would not have bought it until the previous owner had extended the lease or paid the appropriate amount under asking price to cover these costs.

That’s how I’ve always seen it done before. As with a short lease the property isn’t worth as much as it would be with a good length lease.

One of her neighbours has just sold their flat and had to extend the lease at their cost before the purchaser would continue.

[davejf]

hutchst said:

If mortgage lenders hadn't tightened up their rules in the 5 years since your girlfriend bought her lease(s) and she had remortgaged as she wanted without any problem, would she be bothered about extending a lease on a bit of garden?

She wouldn’t have known about it until she came to sell the property which then wouldn’t be worth as much with a short lease. So the problem would just have been highlighted later.

The issue is surely the solicitor when she bought should have pointed this out and recommended she either got the previous owner to extend before completion or buying at a reduced price to reflect the cost of extending which she didn’t.

[davejf]

hutchst said:

So we're in agreement then. A property with a longer lease is worth more than property with a shorter lease.

Your case is that your girlfriend would have coerced the seller into selling her the higher value property for the lower price. I say that is just speculation and not a good basis for the compensation claim you're looking for.

The conveyancer has offered to waive the fees and handle a new extension for your girlfriend on a disbursements only basis. It is likely to be difficult to improve on that based on what you've said. The property was clearly mortgageable for the planned duration when your girlfriend bought it 5 years ago.

We are in agreement of that. The issue is my girlfriend paid the asking price which was the same as all the other properties in the street at the time.

Our issue is that the short lease wasn’t pointed out by the solicitor so it could have been extended before her purchase.

The solicitor has said the mortgage lender weren’t interested in the short lease on the garden but as it has a impact on overall property price I would imagine they would want to know as we think they didn’t either which would have meant if they had she wouldn’t have had the mortgage approval at the start.
The solicitor doesn’t have any paperwork to confirm or deny that.

The original question was really, should the solicitor have pointed out the short lease to her, which we think she should have, as if she had we would have had it extended before paying full price as is the norm.

[davejf]

Jobbo said:

Almost certainly they should have done so, and there is a fair chance that by not doing so they were negligent.

Your girlfriend should make an appointment to see a different solicitor (a good one this time) with a view to getting this sorted out at the cost of the original solicitors. She should get all of the paperwork she can find together. On the facts you've given my feeling is that the original solicitors were blatantly negligent; it is obvious to anyone that the garden lease should have the same term as the flat lease. They probably missed the fact there were two titles when they looked at the lease extension stuff.

Thank you for the reply. Your thinking mirrors my take on it.
We have taken legal advice on it separately to the original solicitors but at this stage want to give the original solicitor a chance to put this right as it could be a big cost to them.
So far they have said they ‘should have advised the short lease’ although don’t have any meeting notes to confirm this or disclaimer that I would have expected they would have wanted signed if they had advised of a short lease and my GF chose to ignore it (which didn’t happen).

We will now go down the complaints route with the solicitor firm and see where that takes us with the option to then go to the ombudsman for a ruling as I also believe as they are the professional in this and my gf isn’t, they have as you say been negligent.

[davejf]

A205GTI said:

Having had similar on a flat, the process went like this.

Complaint raised -rejected.

Appeal to senior partner - rejected

went through the legal ombudsman- letter acknowledging received in six weeks took them 6 months to look at our case, case handler said we had a genuine claim (Would have run to Circa £30k)

She went sick, colleague looks at it and decides she wants it off her desk charges them with poor service we got £750.00

it is worth pursuing but don't be surprised dependant on the risk they may reject.

ps have you asked them for copies of all paperwork and letters sent to you over this?

Thanks for the reply. Your situation sounds terrible considering the outcome!
We have asked for the meeting notes which the reply was ‘we don’t keep notes as I have the same procedure for all clients’ which seems crazy as every situation will have different outcomes.

We will now ask for all copies, that’s a great suggestion although I fear it will be we don’t have any....

[davejf]

A205GTI said:

One thing to look through is your lease, but also ask for a copy of there conveyancy report, it should be mentioned in there and on the basis of that they should have advised appropriately, Also check there website about lease extensions and screen print if it mentions it!

good luck

Great suggestions. Thank you.

[davejf]

Pro Bono said:

The first thing to say is that irrespective of all the other comments a lease that only has 40 years left is not an acceptable title unless it’s been specifically pointed out to you. The fact that it only relates to the garden is neither here nor there.

Secondly, such a title would not normally be acceptable to mortgage lenders. The Council of Mortgage Lenders issues a document called the CML Handbook. This tells solicitors acting for mortgage lenders what is and is not acceptable security.

Although the individual requirements vary slightly from lender to lender, they all specify a minimum term of lease, often by reference to the term of the mortgage. For example, the Nationwide says the lease must have at least 55 years to run or 30 years after the mortgage term has expired.

This means that because the lease was non-compliant your solicitor would have had to report it to your mortgage lender and get their specific consent to proceed (I know we’re talking about your girlfriend, but it’s easier just to say `you’).

I would therefore specifically request a copy of the `report on title’ that the solicitor would have had to send your lender to get the money released. It will definitely be on the file, as the CML insist that all such documents must be retained for at least 6 years after completion of the purchase.

If, when you receive it, there’s no mention of the 40 year lease then it’s pretty solid evidence that she hadn’t noticed it. If she didn't tell them then she almost certainly didn't tell you.

“We have contacted the previous solicitor and she says she ‘would have mentioned it’ although as it was 5 years ago can’t be sure.“

That’s hardly surprising. But, again, she will still have the original file, so it’s easy enough for her to check whether or not she told you. Insist that she retrieves it and answers the question.

If she didn’t tell you then I would say she was almost certainly negligent and in breach of contract. The `damages’ (compensation) you can claim are more complicated, and there isn’t enough information to assess these with any certainty. However, if the matter was left as it is then one measure of damages might be the difference in value between the property as it stands and the property with a reasonable term of lease left. You would need expert valuation evidence.

However, the sensible solution is obviously to extend the lease.

If you do so you may end up with something slightly better than you’d expected, so that you may not be able to reclaim the whole of the premium paid. However, I can’t see the difference would be significant. You should certainly be able to claim the professional fees incurred in obtaining an extension.

If you can prove that the remortgage would have got you a lower interest rate it’s possible that you could also claim the additional interest that will be incurred until the extension process has been completed and the new mortgage kicks in.

Finally, it’s possible that the existing firm might be willing to pay for the whole extension, so that you’re in the position you expected to be. However, at this stage you need to obtain the copy report on title and a specific answer to the question as to whether you were told about the lease, so that you can make a better assessment of your situation.

Finally, it may go without saying that until you do know where you stand it would be very unwise to accept the offer that's currently on the table.

Firstly thank you so much for the very long and informative post. It explains so much.

When she bought it it would have had 45 years lease on the garden, again not long enough I would have thought.

Interestingly nationwide is who the remortgage was going to be with hence that’s exactly what they have said.

I don’t think there is a report on title as we asked for the correspondence between them and the reply was that the property itself had a long enough lease so no need to contact them (Barclays) at all. I wouldn’t think this to be right especially now from what you have said?

The re-mortgage would have been a lower interest rate and that’s not something I’d considered so thank you for pointing that out.

Again, thank you for the detailed reply.

[davejf]

Pro Bono said:

The solicitor could not have obtained the money without sending the report on title. It's a printed form that's completed by the solicitor. She must have a copy of it on the file.

This is the current form used by Barclays - https://www.barclays.co.uk/help/content/Certificat... As you'll see, there's a box on page 3 in which the term of the lease has to be inserted by the solicitor. Unfortunately, this probably won't help you, as although it's a bit ambiguous I think it's referring to a lease that's actually in force to a third party - e.g. a buy to let property.

However, what you've said reinforces my suspicion that the solicitor hadn't noticed the short term left on the lease, so told neither Barclays nor yourself.

I've checked the CML Handbook for Barclays, and they say:

5.14.1 What minimum unexpired lease term does the lender accept?

Mortgage term plus 25 years

So assuming it was a conventional 25 year mortgage then at the time the flat was bought the garden lease would not have been compliant, as it would have needed to last for at least another 50 years.

This meant that the solicitor was duty bound to report the issue to Barclays, and get their specific consent to proceed.

So again, I'd specifically ask the solicitor to let you have a copy of the report on title. If she's sent it without having mentioned the lease then it's strong evidence in your favour.

If she denies having a copy you can tell her you'll obtain a copy from Barclays, who definitely will have a copy. But she won't want them alerting to the situation, so don't be surprised if it then suddenly turns up!

Thank you for another very detailed response.

It was a 25 year mortgage so definitely wouldn’t have been compliant. That’s great information for us to have.

We will ask for that and see what the response is. Our concern is will Barclays turn around and say we have a problem and try and get the money back off us as we obviously aren’t in a position to be able to pay off the mortgage? Or will they go after the solicitor too?

If letting them know about this will help us put pressure on the solicitor to make it right then that would obviously be good although if it’s bad for the solicitor we would certainly like to use that as a carrot to get the solicitor to cover the costs of this without dragging this out and having to resort to the ombudsman.

[davejf]

Pro Bono said:

You needn't worry about that. Although the security may have a technically defective title Barclays won't be unduly concerned, and provided you maintain your mortgage payments you'll be fine.

However, they will be critical of the solicitor, and this might assist you, in that they would expect the solicitor to take whatever steps are required to `perfect their security'.

Thank you. I was hoping that might be how they would see it too.

We intend to contact the head of the firm and make a complaint from here as the solicitor herself is basically fobbing is off from what you’ve pointed out. We shall see what response we get from that and I’ll make sure I report back.

Thank you so much, you have certainly eased our minds and given us some great points to raise and information to ask for from them.

[davejf]

vincenz said:

OP- any update?!

Not much to report yet.

We made a formal complaint to the solicitor firm. Yesterday late afternoon we had an email back from the solicitor herself confirming receipt of the official complaint and that she had been instructed by her manager to look at it again.
She asked for permission to contact the lease holder to find out the costs involved in extending the lease (previously had told us she could give us the contact details of the company they use). So they appear to be finding out what they could be on the hook for and taking it seriously so far.

I’ll report back when we find out anything else.

[davejf]

matjk said:

out of interest whats the cost (minus the legal cost you are getting for free now) to extend the lease on the garden? As would that not be the maximum discount you would have expected to get on the Flat and hence limit the compensation claim ? Also you don't know for a fact the other properties sold had longer leases (or do you) or that those flats weren't less desirable to the market and you still got a bargain . Just playing devils advocate as the solicitor will argue all this.

We don’t yet know that cost. Once the solicitor has now found that out we will know.
That would be the maximum discount we would have expected.
We know a few of the neighbours who bought at roughly the same time so have know the leases and figures So unless the cost to extend is less than a few grand then we can be sure we paid normal price with a long lease. We’re expecting the cost based on lease calculators to be 5-10k to be honest with a lease that short so are fairly certain we didn’t get a bargain as the short lease wasn’t disclosed to my girlfriend when she bought.

All good points that we do have answers for when they will arise.

Although the fact they haven’t just dismissed the complaint now we’ve gone officially rather than just back to the solicitor suggests if she had have looked closely when we contacted her a few weeks back that she would just be able to come straight back and say no, the fact they are now looking into costs suggests that they didn’t look very closely then.